United States v. Sergio Mendoza

Ninth Circuit

United States v. Sergio Mendoza

411 F. App'x 55

CourtCourt of Appeals for the Ninth Circuit

DecidedJanuary 20, 2011

Docket09-50606

StatusUnpublished

This text of 411 F. App'x 55 (United States v. Sergio Mendoza) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Sergio Mendoza, 411 F. App'x 55 (9th Cir. 2011).

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Opinion

MEMORANDUM **

Sergio Villanueva Mendoza appeals from the 51-month sentence imposed following his guilty-plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Mendoza contends that the district court plainly erred in determining that he should receive two criminal history points pursuant to U.S.S.G. § 4A1.1(d) for committing the instant offense while serving a criminal justice sentence. According to Mendoza, because he was in prison for another offense and unable to leave the country when he was found by immigration officials, the commission of the section 1326 offense was beyond his control and he is improperly being further punished solely for his status rather than for committing a new crime.

The district court did not plainly err. A “found in” offense is a continuing offense that begins when the defendant reenters the country and continues until discovery by immigration officials. See United States v. Reyes-Pacheco, 248 F.3d 942, 946 (9th Cir.2001). Mendoza was not required to be voluntarily in the country at the time he was found; it was sufficient that he reentered the country voluntarily. See United States v. Ortiz-Villegas, 49 F.3d *56 1435, 1437 (9th Cir.1995) (“We also reject Ortiz-Villegas’ argument that he did not have the required intent to be ‘found in’ the United States because he. was involuntarily incarcerated within United States’ borders at the time he was located.”). In addition, Mendoza’s inability to leave the country and avoid being found was due to his own voluntary conduct in committing another crime. See id. at 1437 n. 2. He therefore committed the instant offense while under a criminal justice sentence. See U.S.S.G. § 4A1.1(d).

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM **

Sergio Villanueva Mendoza appeals from the 51-month sentence imposed following his guilty-plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Mendoza contends that the district court plainly erred in determining that he should receive two criminal history points pursuant to U.S.S.G. § 4A1.1(d) for committing the instant offense while serving a criminal justice sentence. According to Mendoza, because he was in prison for another offense and unable to leave the country when he was found by immigration officials, the commission of the section 1326 offense was beyond his control and he is improperly being further punished solely for his status rather than for committing a new crime.

The district court did not plainly err. A “found in” offense is a continuing offense that begins when the defendant reenters the country and continues until discovery by immigration officials. See United States v. Reyes-Pacheco, 248 F.3d 942, 946 (9th Cir.2001). Mendoza was not required to be voluntarily in the country at the time he was found; it was sufficient that he reentered the country voluntarily. See United States v. Ortiz-Villegas, 49 F.3d *56 1435, 1437 (9th Cir.1995) (“We also reject Ortiz-Villegas’ argument that he did not have the required intent to be ‘found in’ the United States because he. was involuntarily incarcerated within United States’ borders at the time he was located.”). In addition, Mendoza’s inability to leave the country and avoid being found was due to his own voluntary conduct in committing another crime. See id. at 1437 n. 2. He therefore committed the instant offense while under a criminal justice sentence. See U.S.S.G. § 4A1.1(d).

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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